TRAVERSE CITY, Mich. (AP) — Federal agencies Tuesday asserted regulatory authority over many of the nation's streams and wetlands in an effort to clarify which are shielded from development under the Clean Water Act, an issue that remains in dispute even after two U.S. Supreme Court rulings.
The law gives the government jurisdiction over U.S. waters, but legal challenges have raised questions about whether its protections extend to small waterways that might flow intermittently. Some are tributaries of larger rivers or lakes, which can be affected by pollution miles upstream.
Some landowners and developers contend the government has gone too far, regulating isolated ponds or marshes with no direct connection to navigable waterways. Their lawsuits led to rulings by the high court in 2001 and 2006 that limited regulators' reach but left many questions unanswered. The latter case, involving two development projects in Michigan, was decided on a 5-4 vote and produced five separate opinions with no clear majority among the justices.
"That confusion is not good for anybody," Environmental Protection Agency chief Gina McCarthy said. "It's cost us time and money, and increases risks to our health and our economy."
Under a rule proposed by EPA and the Army Corps of Engineers, seasonal and rain-dependent streams — and wetlands near rivers and streams — would be covered by the Clean Water Act. Others would be considered on a case-by-case basis to determine if they play a significant role in the quality of downstream waters.
"We are clarifying protection for the upstream waters that are absolutely vital to downstream communities," McCarthy said.
Environmental groups said the rule would restore protection to most of the 20 million acres of wetlands and 60 percent of the nation's stream miles that had been lost under Bush administration policies.
The rule would not expand the Clean Water Act and would cover only types of waters that historically have been protected, despite fears of farmers and ranchers that it would regulate virtually all waters, McCarthy said. Tile drainage systems would not be regulated and there would be no new requirements for irrigation and drainage ditches.
Exemptions already granted for farming activities would continue and 53 agricultural conservation practices would be added to the list.
"Today's rulemaking will better protect our aquatic resources by strengthening the consistency, predictability and transparency of our jurisdictional determinations," said Jo-Ellen Darcy, assistant secretary of the Army for civil works.
Sen. David Vitter of Louisiana, ranking Republican on the Environment and Public Works Committee, said the proposal "may be one of the most significant private property grabs in U.S. history" and gives environmental groups more grounds for suing landowners. He said it could "significantly expand federal authority over streams, ditches, ponds, and other local water bodies — many of which are located on private property throughout the U.S."
Environmentalists said wetlands perform vital services such as absorbing floodwaters, filtering out pollution and providing habitat for fish, waterfowl and other wildlife.
"The streams and wetlands protected by this rule supply drinking water to more than one-third of all Americans," said Larry Schweiger, president of the National Wildlife Federation. "Our rivers, lakes, and bays will be cleaner and healthier."
Still, he said, it falls short of restoring protections to valuable waters such as prairie potholes, Carolina bays, vernal pools and playa lakes.
EPA and the Army Corps will decide whether to adopt the rule after a 90-day public comment period.
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